Domestic Violence

Recently, both New York and New Jersey have increased their efforts to prosecute suspects arrested for Domestic Violence. Both State legislatures have transformed their attitude toward such crimes and now proclaim domestic violence to be “a serious crime against society.”. N.J.S.A. § 2C: 25-18. Through New York’s Family Court Act and New Jersey’s Prevention of Domestic Violence Act, the States have harshened the arrest guidelines, sentences and penalties facing domestic violence offenders. Domestic violence proceedings can be initiated in either Criminal Court or Family Court, and in both courts, the penalties are severe and long lasting. With the stakes at all-time highs for those arrested for Domestic Violence, the need to retain an attorney is equally as important. The Law Office of Elliot H. Fuld has over 30 years of experience representing people of have been arrested and accused of domestic violence in New York and New Jersey. If you have been arrested and charged with a domestic violence offense, it is crucial you discuss your case with a lawyer. Contact one of our attorneys to set up a free consultation and discuss how we can fight for you and defend your case.

The identification of spousal or parent child relationships is straightforward whereas “members of the same household” are a little more difficult to identify. For the purposes of this domestic violence statute, the legislature has defined "members of the same family or household" to include: (a) persons related by consanguinity (blood-related) or affinity (through marriage, i.e. in-laws); (b) persons legally married to one another; (c) persons formerly married to one another regardless of whether they still reside in the same household; (d) persons who have a child in common regardless of whether such persons have been married or have lived together at any time; and (e) persons who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an "intimate relationship" include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship.

The legislature has explicitly noted that neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an "intimate relationship".

In each case, the Complainant decides whether the domestic violence case will proceed to Family Court or Criminal Court and is instructed that a Family Court proceeding is a civil proceeding and is for the purpose of attempting to stop the domestic violence, end the family disruption and obtain protection. The Complainant is instructed that a proceeding in the criminal courts is for the purpose of prosecution of the domestic violence offender and can result in a criminal conviction of the offender.

Under NY CPL § 140.10(4)(c), a police officer shall arrest a person, and shall not attempt to reconcile the parties or mediate, where such officer has reasonable cause to believe that a misdemeanor constituting a domestic violence offense has been committed by such person against such family or household member, unless the victim requests otherwise. Officers are instructed to not to inquire as to whether the victim seeks an arrest of such person.

However, when an officer has reasonable cause to believe that more than one family or household member has committed such a domestic violence offense, the officer is not required to arrest each such person. In such circumstances, the officer shall attempt to identify and arrest the primary physical aggressor after considering: (i) the comparative extent of any injuries inflicted by and between the parties; (ii) whether any such person is threatening or has threatened future harm against another party or another family or household member; (iii) whether any such person has a prior history of domestic violence that the officer can reasonably ascertain; and (iv) whether any such person acted defensively to protect himself or herself from injury. The officer shall evaluate each complaint separately to determine who is the primary physical aggressor and shall not base the decision to arrest or not to arrest on the willingness of a person to testify or otherwise participate in a judicial proceeding.

The New Jersey Legislature, in N.J.S.A. § 2C:25-19(d), defines a victim of domestic violence as any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member. New Jersey broadens the term "Victim of domestic violence" to also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant, and any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.

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